Part II

THE COMMISSION AND THE LICENSING OF CERTIFICATION AUTHORITIES

3Appointment of Commission

(1) The Commission shall be responsible for administering, enforcing, carrying out and giving effect to the provisions of this Act and shall exercise, discharge and perform the powers, duties and functions under this Act for the purpose of monitoring and overseeing the activities of certification authorities.

(2) (Deleted by Act A1121).

(3) (Deleted by Act A1121).

(4) The Commission and its employees shall exercise their powers under this Act subject to such directions as to general policy and orders as may be given or made by the Minister.

(5) The Commission shall maintain a publicly accessible data base containing a certification authority disclosure record for each licensed certification authority which shall contain all the particulars required under the regulations made under this Act.

(6) The Commission shall publish the contents of the data base in at least one recognized repository.

4Certification authorities to be licensed

(1) No person shall carry on or operate, or hold himself out as carrying on or operating, as a certification authority unless that person holds a valid licence issued under this Act.

(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both, and in the case of a continuing offence shall in addition be liable to a daily fine not exceeding five thousand ringgit for each day the offence continues to be committed.

(3) The Minister may, on an application in writing being made in accordance with this Act, exempt-

(a)a person operating as a certification authority within an organization where certificates and key pairs are issued to members of the organization for internal use only; and

(b)such other person or class of persons as the Minister considers fit,

from the requirements of this section.

(4) The Minister may delegate his powers under subsection (3) to the Commission and such powers may be exercised by the Commission in the name and on behalf of the Minister.

(5) A delegation under subsection (4) shall not preclude the Minister himself from exercising at any time the powers so delegated.

(6) The liability limits specified in Chapter 8 of Part IV shall not apply to an exempted certification authority and Part V shall not apply in relation to a digital signature verified by a certificate issued by an exempted certification authority.

5Qualifications of certification authorities

(1) The Minister shall, by regulations made under this Act, prescribe the qualification requirements for certification authorities.

(2) The Minister may at any time vary or amend the qualification requirements prescribed under subsection (1) provided that any such variation or amendment shall not be applied to a certification authority holding a valid licence under this Act until the expiry of that licence.

6Functions of licensed certification authorities

(1) The function of a licensed certification authority shall be to issue a certificate to a subscriber upon application and upon satisfaction of the licensed certification authority's requirements as to the identity of the subscriber to be listed in the certificate and upon payment of the prescribed fees and charges.

(2) The licensed certification authority shall, before issuing any certificate under this Act, take all reasonable measures to check for proper identification of the subscriber to be listed in the certificate.

(3) The licensed certification authority shall, on the issuance of any certificate under this Act, cause the application for the certificate to be certified by a notary public duly appointed under the Notaries Public Act 1959 [Act 115].

7Application for licence

(1) An application for the grant of a licence under this Act shall be made in writing to the Commission in such form as may be prescribed.

(2) Every application under subsection (1) shall be accompanied by such documents or information as may be prescribed and the Commission may, orally or in writing at any time after receiving the application and before it is determined, require the applicant to provide such additional documents or information as may be considered necessary by the Commission for the purposes of determining the suitability of the applicant for the licence.

(3) Where any additional document or information required under subsection (2) is not provided by the applicant within the time specified in the requirement or any extension thereof granted by the Commission, the application shall be deemed to be withdrawn and shall not be further proceeded with, without prejudice to a fresh application being made by the applicant.

8Grant or refusal of licence

(1) The Commission shall, on an application having been duly made in accordance with section 7 and after being provided with all such documents and information as it may require, consider the application, and where it is satisfied that the applicant is a qualified certification authority and a suitable licensee, and upon payment of the prescribed fee, grant the licence with or without conditions, or refuse to grant a licence.

(2) Every licence granted under subsection (1) shall set out the duration of the licence and the licence number.

(3) The terms and conditions imposed under the licence may at any time be varied or amended by the Commission provided that the licensee is given a reasonable opportunity of being heard.

(4) Where the Commission refuses to grant a licence, it shall immediately notify the applicant in writing of its refusal.

9Revocation of licence

(1) The Commission may revoke a licence granted under section 8 if it is satisfied that-

(a)the licensed certification authority has failed to comply with any obligation imposed upon it by or under this Act;

(b)the licensed certification authority has contravened any condition imposed under the licence, any provision of this Act or any other written law, regardless that there has been no prosecution for an offence in respect of such contravention;

(c)the licensed certification authority has, either in connection with the application for the licence or at any time after the grant of the licence, provided the Commission with false, misleading or inaccurate information or a document or declaration made by or on behalf of the licensed certification authority or by or on behalf of any person who is or is to be a director, controller or manager of the licensed certification authority which is false, misleading or inaccurate;

(d)the licensed certification authority is carrying on its business in a manner which is prejudicial to the interest of the public or to the national economy;

(f)a winding up order has been made against the licensed certification authority or a resolution for its voluntary winding up has been passed;

(g)the licensed certification authority or any of its officers holding a managerial or an executive position has been convicted of any offence involving dishonesty, fraud or moral turpitude;

(h)the licensed certification authority or its director, controller or manager has been convicted of any offence under this Act; or

(i)the licensed certification authority has ceased to be a qualified certification authority.

(2) Before revoking a licence, the Commission shall give the licensed certification authority a notice in writing of its intention to do so and require the licensed certification authority to show cause within a period specified in the notice as to why the licence should not be revoked.

(3) Where the Commission decides to revoke the licence, it shall immediately inform the certification authority concerned of its decision by a notice in writing.

(4) The revocation of a licence shall take effect-

(a)where there is no appeal against such revocation, on the expiration of fourteen days from the date on which the notice of revocation is served on the licensed certification authority; or

(b)where there is an appeal against such revocation, when the revocation is confirmed by the Minister.

(5) Where an appeal has been made against the revocation of a licence, the certification authority whose licence has been so revoked shall not issue any certificates until the appeal has been disposed of and the revocation has been set aside by the Minister but nothing in this subsection shall prevent the certification authority from fulfilling its other obligations to its subscribers during such period.

(6) A person who contravenes subsection (5) commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both.

(7) Where the revocation of a licence has taken effect, the Commission shall, as soon as practicable, cause such revocation to be published in the certification authority disclosure record that it maintains for the certification authority concerned and advertised in at least one national language and one English language national daily newspaper for at least three consecutive days.

(8) Any delay or failure in publishing or advertising such notice of revocation shall not in any manner affect the validity of the revocation.

10Appeal

(1) Any person who is aggrieved by-

(a)the refusal of the Commission to license any certification authority under section 8 or to renew any such licence under section 17; or

(b)the revocation of any licence under section 9,

may appeal in writing to the Minister within fourteen days from the date on which the notice of refusal or revocation is served on that person.

(2) The decision of the Minister under this section shall be final and conclusive.

11Surrender of licence

(1) A licensed certification authority may surrender its licence by forwarding it to the Commission with a written notice of its surrender.

(2) The surrender shall take effect on the date the Commission receives the licence and the notice under subsection (1), or where a later date is specified in the notice, on that date.

(3) The licensed certification authority shall, not later than fourteen days after the date referred to in subsection (2), cause such surrender to be published in the certification authority disclosure record of the certification authority concerned and advertised in at least one national language and one English language national daily newspaper for at least three consecutive days.

12Effect of revocation, surrender or expiry of licence

(1) Where the revocation of a licence under section 9 or its surrender under section 11 has taken effect, or where the licence has expired, the licensed certification authority shall immediately cease to carry on or operate any business in respect of which the licence was granted.

(2) Notwithstanding subsection (1), the Minister may, on the recommendation of the Commission, authorize the licensed certification authority in writing to carry on its business for such duration as the Minister may specify in the authorization for the purpose of winding up its affairs.

(3) Notwithstanding subsection (1), a licensed certification authority whose licence has expired shall be entitled to carry on its business as if its licence had not expired upon proof being submitted to the Commission that the licensed certification authority has applied for a renewal of the licence and that such application is pending determination.

(4) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both, and in the case of a continuing offence shall in addition be liable to a daily fine not exceeding five thousand ringgit for each day the offence continues to be committed.

(5) Without prejudice to the Commission's powers under section 33, the revocation of a licence under section 9 or its surrender under section 11 or its expiry shall not affect the validity or effect of any certificate issued by the certification authority concerned before such revocation, surrender or expiry.

(6) For the purposes of subsection (5), the Commission shall appoint another licensed certification authority to take over the certificates issued by the certification authority whose licence has been revoked or surrendered or has expired and such certificates shall, to the extent that they comply with the requirements of the appointed licensed certification authority, be deemed to have been issued by that licensed certification authority.

(7) Nothing in subsection (6) shall preclude the appointed licensed certification authority from requiring the subscriber to comply with its requirements in relation to the issuance of certificates or from issuing a new certificate to the subscriber for the unexpired period of the original certificate provided that any additional fees or charges to be imposed shall only be imposed with the prior written approval of the Commission.

(8) Where the Commission has appointed a licensed certification authority to take over the certificates of a certification authority under subsection (6), the certification authority shall pay to the appointed licensed certification authority such part of the prescribed fee paid by the subscribers to it as the Commission may determine.